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In , Nicholas Toonen, a gay activist, challenged two provisions of the Tasmanian Criminal Code: Sections a and c , and , which criminalized all forms of sexual contact between consenting adult men in private, arguing that their continued existence in the Criminal Code of Tasmania had a profound and harmful impact on many Tasmanian people by fueling discrimination , harassment, and violence against gay and lesbian Tasmanians.
He adds that the Director of Public Prosecutions announced, in August , that proceedings pursuant to Sections a , c and would be initiated if there was sufficient evidence of the commission of a crime.
He additionally argued that the laws restricted him from " openly exposing his sexuality " and publicizing his views on law reform as this would have been "prejudicial to his employment," contending that the Sections "created the conditions for discrimination in employment, constant stigmatization, vilification, threats of physical violence and the violation of basic democratic rights.
Toonen further complained that Tasmanian "figures of authority" such as members of the Lower House of Parliament ; municipal councillors; clergy and the general public were known to openly make derogatory remarks about gays and lesbians, including statements such as "representatives of the gay community are no better than Saddam Hussein "; "the act of homosexuality is unacceptable in any society, let alone a civilized society"; and "you are 15 times more likely to be murdered by a homosexual than a heterosexual".
Some had further suggested that all Tasmanian homosexuals should be exiled to an uninhabited island or be subjected to compulsory sterilization.
This, claimed Toonen, constituted a "campaign of official and unofficial hatred" against gays and lesbians, and made it difficult for the Tasmanian Gay Law Reform Group to disseminate information about its activities and advocate the decriminalization of homosexuality.
Toonen alleged that Sections a and c and of the Tasmanian Criminal Code violated articles 2 1 , 17 and 26 of the International Covenant on Civil and Political Rights because:.
In their enforcement, these provisions result in a violation of the right to privacy , since they enable the police to enter a household on the mere suspicion that two consenting adult homosexual men may be committing a criminal offence.
Given the stigma attached to homosexuality in Australian society and especially in Tasmania , the violation of the right to privacy may lead to unlawful attacks on the honour and the reputation of the individuals concerned.
That the laws in question are not currently enforced by the judicial authorities of Tasmania should not be taken to mean that homosexual men in Tasmania enjoy effective equality under the law.
In considering the admissibility of the complaint, the Committee determined that the author Toonen could be deemed a "victim" within the meaning of article 1 of the Optional Protocol, and that his claims were admissible ratione temporis within the temporal jurisdiction of the committee.
The communication was declared admissible on 5 November In its response, the federal government of Australia conceded that Toonen had been a victim of arbitrary interference with his privacy, that he was personally and actually affected by the laws challenged by him, and that the laws could not be justified on public health or moral grounds, but noted that the government of Tasmania denied that he had been the victim of a violation of the Covenant.
The federal government noted that, while the state pointed out that no prosecutions or investigations had been made under the relevant Sections since , the risk of prosecution or investigation remained.
The federal government requested the committee's guidance in interpreting whether sexual orientation could be subsumed under the term " The Committee found that adult consensual sexual activity in private is covered by the concept of "privacy", and that Toonen was affected by the continued existence of the Tasmanian laws, which continuously and directly interfered with his privacy, despite their lack of recent enforcement.
The Committee found that the Sections did not meet the "reasonableness" test in the circumstances of the case, and that they arbitrarily interfered with Toonen's right under article 17, paragraph 1.
As regards the guidance sought by the Australian government as to whether sexual orientation may be considered an "other status" for the purposes of article 26, the Committee found the reference to "sex" in article 26 is to be taken as including sexual orientation.
The Human Rights Committee therefore found that the facts before it revealed a violation of articles 17, paragraph 1, juncto 2, paragraph 1, of the Covenant.
The author was entitled to a remedy under article 2 3 a of the Covenant, and the opinion of the committee was that an effective remedy would be the repeal of Sections a , c and of the Tasmanian Criminal Code, and requested a response from the Federal government in 90 days.
Committee member Bertil Wennergren submitted an appendix to the decision, in which he disagreed with the committee's view that it was unnecessary to consider whether there had also been a violation of article 26 of the Covenant.
In his opinion, a finding of a violation of article 17, paragraph 1, should rather have been deduced from a finding of violation of article Wennergren argued that the criminalization of certain behaviours under Sections a , c and of the Tasmanian Criminal Code must be considered incompatible with article 26 of the Covenant a made a distinction between heterosexuals and homosexuals, and b criminalized sexual contacts between consenting men without at the same time criminalizing such contacts between consenting women, thereby setting aside the principle of equality before the law, in violation of article The discriminatory criminal legislation at issue here is not strictly speaking "unlawful" but it is incompatible with the Covenant, as it limits the right to equality before the law.
In my view, the criminalization operating under Sections and of the Tasmanian Criminal Code interferes with privacy to an unjustifiable extent and, therefore, also constitutes a violation of article 17, paragraph 1.
I share the Committee's opinion that an effective remedy would be the repeal of Sections a , c and , of the Tasmanian Criminal Code.
In response to the Tasmanian Parliament's refusal to repeal the offending laws, the Federal government passed the Human Rights Sexual Conduct Act - Section 4,  legalising sexual activity between consenting adults throughout Australia and prohibiting the making of laws that arbitrarily interfere with the sexual conduct of adults in private.
In in the case of Croome v Tasmania , Croome applied to the High Court of Australia for a ruling as to whether the Tasmanian laws were inconsistent with the Federal Human Rights Sexual Conduct Act.
The Tasmanian Government repealed the relevant Criminal Code provisions after failing in its attempts to have the matter struck out. According to Nick Poynder in a public lecture presented at Monash University 's Castan Centre for Human Rights Law in Melbourne on 28 April , the committee's views are "widely published and carry significant moral and persuasive authority":.
There is no doubt. According to Justice Michael Kirby, in a speech given on the bicentenary of Tasmania, the changes in law resulted in Tasmania becoming "one of the most enlightened" Australian states:.
Early leadership was given by the Tasmania Police. An education reference group was established to turn around earlier policy and to combat homophobia in Tasmanian schools.
Soon a programme was instituted to remove sexuality discrimination entirely from Tasmanian law and official practice. Tourism Tasmania even dedicated resources to promoting the State as a place friendly to gay visitors.
For those who knew the whole history, this was truly a story of amazing Tasmania. Indeed, it was reportedly higher in Hobart than in Melbourne or Sydney.
This case law Toonen v. Australia is also referred to by the Declaration of Montreal ,  and a report of UN High Commissioner for Human Rights on sexual orientation and gender identity.
From Wikipedia, the free encyclopedia. This article needs additional citations for verification. Please help improve this article by adding citations to reliable sources.
Unsourced material may be challenged and removed. See also: LGBT rights in Australia and LGBT rights in Tasmania. Office of the United Nations High Commissioner for Human Rights.
I saw him standing there. The body language was that he didn't know, from my position. And then you have to take a decision - France or Australia.
I got a lot of reactions, let's say that out of 10 people seven said it was a penalty and three said no penalty. Australia play Denmark on Thursday at 1pm while France can qualify for the knockout stages with a win over Peru also on Thursday at 4pm.
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